The life of the law, said the immortal Justice Oliver Wendell Holmes, Jr., has not been logic; it has been experience.
So on Tuesday, when President Barack Obama highly lauded the experience of his first Supreme Court nominee, he wasn't merely rattling off appellate judge Sonia Sotomayor's unmatched résumé; he was heading off what will be a big point of order from Senate Republicans during her confirmation hearings:
An eight-year-old remark that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life" is being dredged up.
Count on an army of critics to contend that those words mean she'll be a minority activist first; that clear-thinking interpretation of the Constitution will come in a distant second. But Sotomayor's record of following judicial precedent, and of hard questions for lightly prepared lawyers, should withstand a storm of nit-picking.
She certainly appears to be the empathetic person President Obama said he'd seek in Supreme Court nominees, and many of her decisions have been anti-discriminatory — but that's proper application of constitutional rights.
Her "white male" remark could have been more carefully chosen — after all, the decisions of many "white male" judges helped pave the way for her illustrious career. But if the life of the law is, indeed, experience, ya era tiempo — it's about time that our higher courts, creators of case law, gained greater diversity of people and views.
Sotomayor already was a good start in that direction: President Bill Clinton named her to the U.S. Court of Appeals in 1997. Republicans delayed her confirmation for a year — but that was when they controlled the Senate, and now they don't. GOP enthusiasm for a filibuster against her already is flagging, and the votes might not be there anyway.
She'll face senatorial scrutiny over her court's affirmative-action decision against white Connecticut firefighters — a case now before none other than the Supreme Court. And right-wing activists can be expected to apply magnifying glasses to her record, and to subject her to talk-radio trials. But this judge has undergone plenty of vetting already — so it would take something new and shocking to derail her nomination.
Judge Sotomayor, raised in the housing projects of New York's South Bronx, with all that implies in terms of social and financial obstacles, went on to Princeton and Yale Law on scholarships. She was a top student at both schools — and, intellectually, she remains in high gear.
She's the ideal choice to fill Justice David Souter's position on our nation's highest court.
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